Freedom to discriminate with impunity? It’s worse than that.
Almost universally, the religious freedom claims pursued in the U.S. over the last two decades seek the freedom to do harm, most often the freedom to harm queers, women, children or religious outsiders, or America’s secular government institutions.

It’s Not Just About Bigotry and Homophobia

In recent years, religious believers have sought and largely won a cascading array of rights, privileges, and exemptions from laws that otherwise apply to all.

The right to discriminate in public accommodations and hiring practices

The right to interfere with a religious outsider’s family formation, sexual intimacy, and childbearing decisions

The right to interfere in a religious outsider’s dying process

The right to use public funds and other assets to propagate the values and priorities of the religion itself

The right to freeload on shared infrastructure without contributing to the same

The right to refuse medical care to women and children

The right to engage in religiously motivated child abuse (psychological abuse, physical abuse, neglect, or medical neglect) with impunity

Ironically, one reason that modern religious freedom claims so often seek the right to do harm is that other kinds of religious belief and practice are so well established. For over 200 years, core religious freedoms have been protected by law in the United States. America’s founders carefully secured the right of men to believe, think, and assemble for worship as they chose—or to publically deny that they belonged to the religious majority without being excluded from the power and privilege of public office.

An American citizen or resident can hold a spiritual worldview that is shared by a community or deeply idiosyncratic. We are free to adhere to all manner of wild and wacky superstitions, and we do. Alternately, we can use a dozen or more labels to identify ourselves as non-religious. We are free legally to renounce our childhood religion and try a new one. We can teach our beliefs to our children and recruit converts on street corners. We can do all of this without fear of imprisonment, lashings, torture or execution.

In contrast to people living in Muslim majority countries today or in Christian Europe during past centuries, Americans take these rights for granted, so much so that we forget that these freedoms were precious and new to many who immigrated here to escape religious persecution.

By contrast with enduring protections for religious belief and assembly; religiously motivated behavior historically has been constrained by U.S. law for compelling reasons including the following:

To establish civil society. To create a civil society, one that can in any measure live up to the words that have been America’s motto since 1795, E Pluribus Unum, the rule of law must trump the rule of religion. The Supreme Court long defended this position. Law trumping religion is not just the only way to build a functioning pluralistic society, it is the only way to create a government that can protect the religious freedom of citizens.

To promote the general welfare. American civic agreements when functioning as intended, aim to promote the general welfare and avert harms. To this end our civil and criminal codes set limits on religiously motivated behavior and establish civic duties and responsibilities that apply to citizens regardless of religious status.

To prevent dictatorial theocracy. To prevent theocracy akin to that which many early immigrants fled in Europe, religious institutions and practitioners are blocked from leveraging the apparatus of the state to fund and promote religion itself.

It is these restrictions that are now being challenged by religious adherents, and the second of these makes it clear why so many religious freedom claims seek the freedom for a religious individual or organization to cause harm with impunity.

By definition, since civic agreements are an attempt to promote the general welfare, the exemptions sought by religious individuals and institutions generally do the opposite, meaning they allow those who are exempted to violate legal agreements intended to promote broad wellbeing. Secondarily, those claiming religious freedom often seek to coopt the power of the state for religious ends so that civic agreements can be modified to reflect religious theology. One might say that the goal is to use the tool of government to promote the general religion rather than promote the general welfare.

Bible Texts Bind Believers to Harmful Priorities

In an ideal world, the general welfare and the general religion might be aligned, and even in our imperfect world religion often promotes generosity, kindness, service, and conscience-driven behavior. But the world’s major religions all have ancient roots, and thanks to the rise of literacy during the Iron Age, they all have sacred texts that anchor believers to an Iron Age set of social scripts and moral priorities including some truly horrific ideas.

The Christian Bible endorses slavery, racism, tribal warfare, torture, the concept of women and children as chattel, and the death penalty for over 30 offenses. It offers an exclusive alternative to eternal damnation, driving believers to seek converts when and where they can. It teaches that infidels have no moral core and fosters suspicion of religious outsiders. It elevates sexual purity to the level of moral purity. It makes a virtue out of certitude. Small wonder, then, that sincere believers seeking to do the will of God sometimes end up seeking the right to do harm.

Civic Safeguards vs. Religious Persistence

During most of American history, boundaries around religious freedom generally were upheld by the courts so long as the rules applied equally to all. Jefferson’s “wall of separation” worked to insulate government from control by a church hierarchy. But a successful religion, like rain on the roof, seeks any crack through which it can penetrate into our public structures and private homes.

In 1993, the misnamed Religious Freedom ‘Restoration’ Act, subtly changed a long time standard, allowing religious practitioners to violate laws that otherwise apply to all; and a cavernous crack appeared. In the words of Justice Anthony Kennedy,

[RFRA’s] sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. . . . Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest….All told, RFRA is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

Although RFRA was ruled unconstitutional as it applies to the states in 1997, it continues to be applied to federal statutes, and modified versions of the bill have been introduced in most states. Since 1993, religious authorities have been doing all in their power to pry the crack wider, using tools including federal and state legislative processes, courts, control of public accommodations like hospitals, and investments in sophisticated legal advocacy infrastructure.

The Threat to Civil Society

Much has been made of the fact that Indiana’s Religious Freedom Restoration Act pushes beyond the bounds set by the federal law of the same name. It explicitly grants religious personhood to for-profit businesses. In addition, immunity for religiously motivated behavior applies to disputes between private individuals in which the government has no part. This combination should make it difficult for individuals that are harmed by discrimination or denial of care or other religious intrusions to obtain redress in civil court.

While it is true that Indiana law pushes the bounds of Religious Freedom farther than earlier statutes, conscience creep has been incremental, and in over half of U.S. states, some imitative form of the Religious Freedom Restoration Act has either been enacted or proposed. Despite protests and boycotts against Indiana, the Arkansas legislature approved similar legislation within days. Indiana’s law, in other words, is simply one tooth in a ratchet that raises religion above civil society, and it is neither the first nor the last tooth in that ratchet.

It Really is About Religious Freedom

Liberal people of faith who don’t share the dominionist goals or moral priorities of fundamentalists often are appalled by these objectives and many insist that laws like the one recently passed in Indiana aren’t about religious freedom but rather bigotry itself, or misogyny, or some other morally tainted mindset. They are both right and wrong.

Yes, these laws do condone bigotry, and misogyny, and other ugly prejudices. But, the photo of those present at the signing of Indiana’s bill–its major proponents—is telling. It mixes white male politicians in suits with a proud array of nuns in habits, monks in cassocks and orthodox Jew in a top hat. Like many of those advocating segregation during the Civil Rights Movement, the advocates of this bill were motivated by devout religious beliefs.

That is because bigotry and misogyny, like racism, are written into the Bible (and Quran and other Axial Age texts), where they express and encode the Iron Age worldview of the writers. In the absence of some external standard, fundamentalists have as much right as anyone to claim that theirs are religious values, and the Supreme Court has said as much.

In the Hobby Lobby case, the Catholic majority ruled that “sincerely held” belief was sufficient to merit protection under the umbrella of religious freedom, even if the sincerely held belief in question was factually inaccurate and not mainstream or required by the person’s sect. Religious belief, in other words, is whatever the believer says it is, and until we repair the gaping crack in our secular democracy, it confers a powerful set of privileges, which means that the limits of credible belief are bound to be tested.

Christianity Offers Little Basis for Dismissing Bogus Claims

Some Eastern religions teach an overarching principle against which religious conscience claims might be weighed. In Tibetan Buddhism, for example, this principle is compassion. In the Jain religion, it is ahimsa, meaning non-harm.

Christianity, on the other hand, has always been torn between those who insist that the overarching principle is love, as articulated in the Great Commandment, and those who insist it is right belief, as expressed in the “Sinner’s Prayer.” Many Evangelicals feel a non-negotiable responsibility to seek converts, as instructed in the Great Commission, which advises followers of Jesus to “make disciples of every creature.” Some perceive a God-given mandate to seize the reins of power, ruling according to biblical principles, a view called dominionism.

Christians are divided also, in their view of the Bible. Some understand the Bible as a human document, one that records the struggle of our ancestors as they sought to grasp timeless truths through a lens darkened by fallibility and culture. Others see it as the literally perfect Word of God, essentially dictated by God to the authors.

The Bible’s contradictory prescriptions, together with differences in how Christians understand biblical authority mean that almost anything can be claimed as a religiously motivated behavior. But even if Christianity’s more than 30,000 denominations could reach consensus about how to assess the merit of religious conscience claims—which they can’t–the problem would remain. The U.S. is home to people of all faiths and none at all, each of whom has his or her own deeply held values and a constitutional right to whatever spiritual worldview he or she may hold.

Time for an Honest Conversation

Around the world, through most of human history, societies have so feared offending supernatural powers that they forbade and punished religious deviance, even by death, lest divine wrath befall the community as a whole. By contrast, in the United States constitution was a product of the Enlightenment, created by a coalition of nontheists, deists, and Christians. While it is true that some populations such as pagans and Native Americans have suffered shameful persecution and oppression at the hands of the Christian majority, in principle, religious freedom has long been broadly protected by law in the U.S. except where it infringes human wellbeing or harms civil society itself.

But some religiously motivated behavior does harm human wellbeing or civil society. Some forms of belief obligate adherents to infringe the rights or wellbeing of others. They are fundamentally incompatible with the radical idea that each person is entitled to life, liberty and the pursuit of happiness. Religious conservatives aren’t simply inventing their appeal to religious conscience—unfettered religious freedom really does mean the right to discriminate, the right to deny medical care, the right to interfere in an outsider’s dying process, the right to beat children, and more.

We may want to believe it is possible to grant boundless freedom of religion to some without impinging the corresponding freedom of others, but this simply isn’t the case. Those who love this country, and those who lead, have some tough choices to make.

31 Responses to Unfettered Religious Freedom Means Freedom to Do Harm

The Federal RFRA was not found totally unconstitutional. It was only found unconstitutional when applied to the states. The federal government is still bound by RFRA as are states that passed a state version.

Isn’t it amazing how the wheel never stops turning, and thus “re” turning? Ground is gained, then it is lost again. Endless war, and endless battles being fought over devastated territories. One could easily compare the “religious” battles to gain and regain ground to World War I. Same pattern, and “the war to end all wars” gave way only because it promised endless war to those in control. So, who’s in control of these religious wars? Who erects the windmills for the theists which non-theists tilt at? America “land of the free and home of the brave” is into full reversion (failure to maintain a higher state) and one can’t help but wonder how far down it will slide before it legally re-institutes slavery? Indeed, with unfettered religious freedom and a book to back the concept of slavery, how far can that be? And who will stop it when those in power can benefit financially and socially from it and it is “they” who manipulate the conscience of the nation? Just thinking out loud.

Once older generations die off and/or depart the public political arena, I think we’ll see more freedoms for all, more inclusion, more progress as a society. Granted, there are plenty of ardent believers among the young but they grow fewer all the time. I’m only in my 50s and have seen radical changes in the past couple decades that I NEVER imagined could happen like same-sex marriage and legalization of marijuana (coming soon to a state near you!).

The scary bit is how many dyed-in-the-wool, corporate-backed, staunchly regressive ORWGs are solidly entrenched in our government and especially on SCOTUS. That’ll take a lot longer to overcome.

Hello K – I had a comment started and it disappeared… quote from you: “Who will stop them? The next generation. The Nones.” First, there are no “Nones” except those who knowingly act in self-empowerment. A real “none” would be someone who puts no trust whatsoever in any aspect of any System. That’s a tall order. That being said, history clearly shows that no “next generation” has ever substantially changed anything, and a blatant example is the sudden rise of communism in Europe and eventually in China. We all know how well that has worked. Nothing wrong with the idea, the problem, as always is intractable human nature. Let’s briefly look at what this supposed “next generation” (another label which describes absolutely nothing: there are no “next generation” except in the minds of statisticians who insist on lumping people in groups, is being challenged with: collapse of the global “economy” or fake money; climate change; food allocation and famine, potable water shrinkage, a technology out of control and increasingly anti-human; conflict due to shortages of natural resources, dwindling space from over-population and of course the utterly immoral rise of a small elite that claims for itself what’s left of earth’s valuable natural and human resources. But their biggest problem is that they will be looking backward at what previous generations had, and they’re going to want it, even knowing the planet can no longer supply it. Who is here, now, to teach them what they need to know: that the only way mankind will survive what’s coming is by becoming compassionate to a fault; to eschew all forms of greed, even regarding self-preservation in favor of serving others? That’s the self-empowered leap they must make. I see no other options open to man at this late stage of his earth tenure. The writing is on the wall and the message is unambiguous.

as usual a well written article. When we study the Inquistion” it becomes apparent that of one even contradiccited ones accusers one was liable to face charges of heresy punishable by death. However Valerie , i cannot agree with this statement: “And since the time of America’s founding, religious freedom has been broadly protected by law except where it infringes human wellbeing or harms civil society itself.” I think its imperative to remember any founding father allowances for religious freedoms were NOT granted to Native Americans.In fact many religious practices were not only condemned but were outlawed and prosecuted. Its difficult for me to read a statement like this …because i begin to think “how quickly people forget”.

This is exactly how Presidents, like G.W. “I trust God speaks through me” Bush can continue to set National policy, long after their terms have ended, by appointing Supreme Court justices who have tenure for life, to continue to uphold those policies.

Regarding discrimination, an idea floated on the Libertarians Concerned Facebook page is to allow any private business (provided it gets no tax subsidies or has competition suppressed by government through things such as licensing laws) to discriminate against any group they want, on condition that they prominently display the groups they won’t service in advertising and on entrances to their establishments.

That way, their property rights and freedom of association are protected, but potential customers won’t waste time or money or be embarrassed by unexpectedly being denied service. Also, this makes it easy for people offended by bigotry to boycott them.

It’s a reasonable assumption that if a business bills itself as “open to the public,” it means *all the public.* Currently, bigots impose the cost on others. An example is the gay couple turned away from a Bed and Breakfast for being gay, even though their charge card had already been debited. They had to spend time finding last-minute accommodations at higher prices.

What this idea does is assign costs to bigots, rather than the targets of their animus. They retain liberty to be bigoted, provided they’re willing to pay the price. I’m willing to bet virtually no one will jump on that bandwagon when costs become clear.

“Indiana’s recent ‘Religious Freedom Restoration Act’ … bars individuals that are harmed by discrimination or denial of care or other religious intrusions from seeking redress in court. Immunity for religiously motivated behavior applies not only to disputes between individuals and government entities but also disputes between private individuals in which the government has no part.”

In no way am I in support of Indiana’s new law, but that does not mean I enjoin the dissemination of half-truths regarding the law, or sit idly by when I witness such.

There is nothing in the law that “bars individuals that are harmed by discrimination or denial of care or other religious intrusions from seeking redress in court,” that I can find. Too, the law ONLY applies to burdens placed, by government, upon the exercise of religion. Yes, the new law can be invoked as a defense in private disputes but only as it applies to a burden placed by government, and at that point the government has an unconditional right to intervene in order to respond to the person’s invocation.

Perhaps someone will point out what I’m missing when I read the new law?

Again, perhaps I’m missing it. I would greatly appreciate someone pointing that out if I am.

I do not see where the law bars someone from seeking, nor makes it more difficult to seek, redress in court. What it MAY make more difficult is prevailing in such a case if the other party invokes this law, but we’ll need some actual rulings to determine if that is a fact.

“The two sides are essentially yelling past one another about a non-issue when they should be working on enacting protections based on sexual orientation in Indiana”
“If there’s a license to discriminate in Indiana, it’s the fact there’s an absence of a statewide law that makes a promise to the LGBT community,”
“RFRA is about minoritarian religion against government, by and large.”
~Robin Fretwell Wilson, professor and director of the family law and policy program at the University of Illinois College of Law.

Valerie, you make some important points. Then you say, “By contrast, in the United States constitution was a product of the Enlightenment, created by a coalition of nontheists, deists, and Christians.”

I agree that deists and Christians (none like the fundamentalists of today) created the constitution. But don’t remember any nontheists being involved. Who did you have in mind?

Also, I agree that Christianity’s influence on human history has been mixed, some of it horrific.

That is one reason I finally left Christianity.

Unfortunately, other options aren’t encouraging either. I am deeply troubled, for instance, by nontheists such as Sam Harris, Anthony Cashmore, etc. who not only deny humans have any choice, but also describe humans with demeaning terms such as “tumors all the way down,” “puppet,” “bags of chemicals, “meat puppet,” etc.

Speaking as a meat puppet, from the omniscient perspective, choice must be impossible (assuming — as I do — laws of physics have no exceptions). Since the only perspective actually available to us, however, is our limited-knowledge personal one, that is irrelevant and choice is rampant.

I’ll expand on this after first using bags of chemicals to address a deep tumor.

For sure, he was an adamant anti-Christian.
Thanks for responding. (I am actually fairly well read when it comes to Thomas Paine’s writings and used to teach him to students. He is actually one of my heroes, especially because of his early strong stance against slavery. But like many human leaders, he sometimes could be a real gadfly:-) toward nearly everybody.

This is one of the best blogs on religion that I have ever read. Written from a unique perspective, as a social scientist who escaped from the cult of Christianity. I appreciate your words, thoughts, and takedowns of the “faith”.

My first experience with Christian bigotry happened years ago when my partner’s uber-devout grandmother turned to me at dinner one day and said, without a shred of shame, “Aren’t you ashamed of yourself?”

I asked her “Ashamed of myself? Whatever are you talking about?”

She said “Well, you SHOULD be ashamed that God made you black!”

It took all my self control to refrain from gouging out her eyes right there and then.

I wish I had been there – we’d have had an anthropological discussion regarding the fact that Humanity originated in Africa – whether one chooses to believe the species was created or evolved, it happened in Africa – and all of Humanity was black. It was only in the recent hundred thousand years or so that segments of the race – the Human Race – migrated to Europe, Asia, and eventually, the Americas, where skin tones began to evolve to the ones displayed today, as a result of the average amount of skin that was exposed to the sun, and how direct those sun rays were.

But from your comment, I take it that you were a guest at dinner in their home, and that the lady’s age, compared to your own, was considerable, and so at least two social mandates were in play at the time, but I would find it hard to sit there and merely tolerate such a remark. I can’t help wondering what your partner had to say in your defense – after all, the host at such a dinner has a mandate as well, to be civil to a guest.

I would have acknowledged (with as straight a face and sounding as sincere as possible) that I was terribly ashamed to have been born black, but express relief that I had not been born a bigot.

Did she know, or even suspect, her grandchild was your partner or did she think you were just a friend? If you and your partner share the same gender, and she suspected a physical relationship, that would go a long way to explain her over-the-top comment, since you would be dragging her offspring to an eternity in Hell.

Also, you don’t say whether or not the grandmother is black. I assume she’s white, because you characterized the encounter as “Christian bigotry” rather than self-hatred.

I understand the urge to “gouge her eyes out,” but imagine how terrible it is to go through life with that attitude. Look what it’s cost her. Would you change places with her if you could?

“… so many religious freedom claims seek the freedom for a religious individual or organization to cause harm with impunity”

I think one of the most egregious examples of that is the claim that a parent’s religious rights trump their child’s religious rights, which include the right to be free from religion. The consequence of that parental claim can be very tragic for children subjected to religiously motivated physical, psychological, spiritual and intellectual abuse, medical neglect, and other harms hypocritically inflicted “for their own good”.